1988年德國聯邦最高法院傳染愛滋病毒案【寰宇醫事裁判】 試閱
The Case about HIV Infection in Germany
本件德國聯邦最高法院裁判為1988年作出，於今日之HIV/AIDS有治療方式下，雖有些不合時宜，但關乎傳染風險、主觀要件之見解仍值得參考。被告因口交時未使用保險套、肛交時亦僅中途使用而至射精，被邦法院判為危險傷害罪。聯邦最高法院認為，鑑於HIV/AIDS尚無有效治療方法而具有致命危險，並非一般感冒等傳染病，故非社會可容許之風險；且被告已受醫師告誡而對HIV/AIDS有比被害人更多的認識，則縱然被害人多麼粗心，其傳染風險也不該由其負責。被告縱然認為其行為之傳染風險可忽略不計，但此僅統計上意義而言，實際上無保險套之性交均有傳染可能，被害人將承擔全部風險，故被告仍具有附條件之故意。
This Federal Court Judgment was issued in 1988. Even though it is somewhat anachronistic in terms of how HIV/ AIDS is treated today, it is still worth considering the risk of infection and the subjective legal elements. The accused was convicted of endanger bodily harm for not using a condom during oral sex and for using a condom only halfway through anal sex until ejaculating. The Federal Court held that since HIV/AIDS is not a socially acceptable risk because it has no effective treatment and is fatal, it is not an infectious disease such as the common cold, and the accused was warned by his physician and knew more about HIV/AIDS than the victim, so he shouldn’t be held responsible for the risk of the infection, no matter how careless the victim was. Although the accused believed that the risk of the infection was negligible, it was only statistically significant, but in reality, any sex without a condom has the possibility of the infection and the victim will bear all of the risks. The accused had a conditional purpose.
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